Launching a new series of interviews with legal translators and experts in the field of legal translation, we have an interview with Eleni Nanaki, Attorney at Law LL.M – author and publisher of the bilingual legal glossaries in the ius et translatum series who talks to us about challenges in legal translation as seen by an international lawyer…Continue Reading..

The challenges and pitfalls of legal translation: an interview with John O’Shea

John is an experienced legal translator with a background in law. We asked him how he ventured into translation, how he deals with the specific challenges of his specialisation and what are some of the best ways to specialise in this field.

Tell us a bit about yourself. How and where did you first learn Greek and how did you decide to venture into legal translation?

Hi, I’m originally from Ireland. I lived in Greece for 15 years and now live in London. I’m a legal translator and have been doing this job for 21 years now. I was also recently elected to the Board of FIT Europe.

I started learning Greek when I was at university, doing some research about environmental law; the idea was to compare the legal systems in two peripheries of the European Union. From early on I had an interest in comparative law, which is an essential tool for any legal translator. I used to teach law too; and law –as you know- is all about language anyway. So it was easy for me to combine my knowledge of law with my interest in language. The perfect combination for a legal translator.

What are the main challenges and “traps” when translating legal texts, especially between two different legal systems?

I studied law in Northern Ireland which has its own legal system within the UK, but of course it is based on the common law. The Greek legal system comes from a completely different tradition, based on Roman and civil law, so it can be very hard to describe the way things are done in the Greek context through the medium of English. Lots of things don’t match up, there are often no simple equivalents for terms, ideas or concepts. Plus with Greek you have a couple of added layers of difficulty and complexity: firstly, the switch from purist Greek to the demotic form; the purist form is still very evident in legal documents even today, and secondly the Greek in Cyprus, especially in a legal setting, is completely different from that in Greece: different terms, different concepts, different ways of seeing the world, different ways of presenting information. So translating from Greek to English can be a real challenge.

You need to have a very strong grasp of the two legal systems you are translating between; and a decent understanding of comparative law. Sometimes concepts may appear to be the same at a superficial level but when you take a comparative law approach, and peel back the layers you realise that what you thought was an easy equivalent, isn’t in fact equivalent at all because the concept in each legal system has a slightly different focus. I remember a paper given at a legal translation conference in early 2017 which talked about negligence in 3 different legal systems; but in each system the losses which were being compensated were radically different. Can we really say that negligence in system A is the same as in system B when it is rectifying a different sort of wrong? As a legal translator you really need to be attuned to that sort of detail which means that in-depth research needs to be a core part of what you do.

How do you approach legal terms that have no precise equivalent in the target language?

Let’s take the example of antiparochi; it became common in Greece in the 50s, 60s and 70s as the country experienced a building boom as people flooded into the cities and anyone with land found it tempting to hand the land over to a contractor who would build an apartment building and give the landowner a couple of flats in return. There isn’t anything like it in the UK that I am aware of. If you check the legal dictionaries they will give various terms that don’t really reflect what the term is really about. That tends to be a major problem with legal dictionaries; often they provide no context for when the suggested terms should be used, and offer no clues as to how to decide between the choices available.

That’s where some knowledge of translation theory can be very useful. It suggests that there are various tools and techniques available to the translator; you can’t just rely on a dictionary. These include the use of calques, loan words or neologisms, even translator’s notes to provide an explanation about what the term means. Which approach you use will often depend on who your client is. If you know the document is intended to be read by lawyers and filed in court you need to be as precise as possible; if the client is someone buying an apartment then you can a bit more lax because their primary concern is to understand what they are agreeing to. So how you translate a term, especially one for which there is no easy equivalent, will vary depending on context. You hear a lot of suggestions about what antiparochi should be in English, but my personal favourite is land-for-flats system. Simple, easy-to-understand, and to the point.

Sometimes concepts may appear to be the same at a superficial level but when you take a comparative law approach and peel back the layers you realise that what you thought was an easy equivalent, isn’t in fact equivalent at all because the concept in each legal system has a slightly different focus.

What would you advise colleagues who wish to specialise in legal translation? How should they go about it?

There’s a massive debate in the legal translation literature about whether someone who has studied law or someone who has studied translation makes the best legal translator. I can’t answer that definitively but from my experience someone without a background in law is at more of a disadvantage because they need to learn the law of two countries, of two legal systems. Someone with a background in law already has a foot on the ladder, and simply needs to become an expert in the other system.

Legal training equips your mind with certain tools that make it much easier to figure out things in the second legal system. I’m not saying it is impossible for someone without legal training to become a legal translator, it just requires a lot more hard work, study and effort; plus the risks of errors being made is definitely higher. That’s not to say that you will never make errors if you’ve studied law then come to translation. To err is human after all.

If you come to legal translation from a translation background, areas you really need to focus on are comparative law, to be able to distinguish between different conceptualisations of the world by different legal systems; procedural law in both systems (how the courts work, how legal proceedings are filed, and so on); the substantive areas of law you are interested in working in -say contract law or land law-; and, strange as it may sound, legal philosophy. A legal translator needs to be able to understand how a lawyer reasons, how he or she thinks, how he or she conceptualises things, put arguments, uses hypothetical reasoning and so on. A firm grounding in legal philosophy can help with that. And of course, legal philosophy in the common law and civil law is very different, so you need to read up on both.

You asked me how to go about specialising in legal translation.

If you come from a translation background, get a law degree ideally. In Greece there are no degree courses in legal translation, you’d have to go abroad to do that. The University of London will be offering one from autumn this year. Other European countries offer great degree courses in legal translation for their own languages. University of Trieste has great expertise in the field for Italian, for example.

If doing another degree is prohibitive, read as widely as possible about the two legal systems you are interested in.

If you come from a legal background, either study translation or read widely about translation theory before diving straight into translation, and of course make sure your language skills in both languages are strong.

Continuous professional development is also vital. You can’t possibly know all areas of law but you can acquire expertise in certain areas, just like lawyers do. So regularly attending conferences on law and on legal translation is important; especially conferences on law because the law is always developing and changing and it pays to keep up to date.

What are some good resources in the Greek to English / English to Greek language combination?

This is one of the major problems with languages of limited diffusion. A major lack of resources targeted at translators. Basically there are few resources in the field. There are some books in Greek, like Prof. Krimpas’ excellent book on legal terminology, but they can be counted on one hand. A couple of the Greek legal codes have been translated into English; the quality varies a lot from below average to ok; plus lots of the key texts have never been properly translated. What you tend to end up with is everyone translating laws / codes differently, whereas with major languages like French and German, official translations of key legislation and codes are easily available.

But the major problem is a lack of decent dictionaries. I’ve already said that dictionaries won’t solve all the problems or answer all the questions but they are good starting point. The problem with GR-EN / EN-GR is that there is paucity of good legal dictionaries. There are in fact quite a few legal dictionaries in that combination, they just tend to be problematic: mere word lists in effect, or a massive choice of potential things to choose from, but no explanation of how to differentiate between them. In other languages like French, academics or even individual translators have prepared legal dictionaries designed to overcome those problems. In Greece, we haven’t quite got to that stage.

The esteemed Max Planck Institute for Foreign and International Criminal Law, in partnership with the German publisher Duncker & Humblot, has recently published a new English translation of the Greek Penal Code by Emmanouil Billis. Mr. Billis is a researcher on criminal law and procedure, comparative criminal law and the law of evidence and teaches at several prestigious law schools around Europe.

This new work “includes a systematic introduction to the basic characteristics and fundamental principles of criminal law and the Penal Code of Greece. As such, it is an indispensable resource for legal professionals, comparatists, and international scholars interested in the Greek criminal justice system”.

I would also add ‘legal translators’ to that list. As I pointed out in a recent blogpost, an essential tool for any professional legal translator is a translation of the key codes into his/her working languages. This can solve many terminological issues and promote consistency, while also aiding comprehension by the target audience.

The new book is the result of a project entitled “Translation of the Greek Penal Code into English”, which was run at the Max Planck Institute for Foreign and International Criminal Law. The contents of the book can be viewed here.

Interestingly, this is not the first time that the Greek Penal Code has been translated into English. The Code was previously translated in 1973 by N. Lolis, prefaced by an introduction to Greek criminal law by Giorgios Mangakis, and published as part of the American Series of Foreign Penal Codes. Times move on though. As the publisher’s blurb for the new book by Billis points out, criminal law is an area that evolves and develops over time and, “the individual definitions of criminal offences, [have] been widely amended several times. Efforts have always been made to adapt the law to modern socio-ethical, political, economic, and international developments”. So the new translation is a welcome addition to the tools at the legal translator’s disposal.

A FEW THOUGHTS ON QUALITY IN LEGAL TRANSLATION

Poor or inadequate legal translations can have dire consequences on the legal, financial and personal relations of individuals, companies and legal entities, lead to doubts regarding the rights and obligations of the parties and can often result in great financial losses. The expectations of quality in this field are high, certainly higher than in other translation fields, for the sake of legal certainty and for the avoidance of these adverse consequences.Continue Reading..

The Siemens bribery trial was characterised by many this past summer as a trial ‘lost in translation’. For those who don’t remember or know the topic, this case is about public contract No. 8002 which the German company Siemens secured and signed in 1997 with the Hellenic Telecommunications Organisation (OTE) which was then publicly owned in order to digitise its network. The investigation of the case was launched by Greek judicial authorities about a decade ago and, as a result, 64 suspects were brought to trial. Amongst them were 13 German nationals, executives of the German company, as well as a French-Swiss banker. According to the indictment, the defendants allegedly bribed Greek politicians and public officials to secure the above mentioned public contract.

On the 12th of July the three-member Court of Appeals in Athens suspended proceedings in the Siemens scandal case for an indefinite period, because the subpoena and the bill of indictment hadn’t been translated into the defendants’ native language. The Court accepted the plea filed by the non-Greek defendants and suspended proceedings until the translation could be completed, even though this suspension could lead to the crimes being prescribed under the statute of limitations. Of course, that is the only decision the Court could have reached, since the right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights and is further specified by the Directive 2010/64/EU of the European Parliament and of the Council. According to the Directive the Member States should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings. Article 3 of the Directive also makes it quite clear that, “Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive. Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment.”

So quite rightly not translating legal content essential for the case was characterised as an even bigger scandal than the Siemens scandal. The Translation Service of the Ministry of Foreign Affairs, to which the translation of those documents was assigned, initially stated that all the documents sent to it by the Prosecution Service at the Court of Appeals were translated in time, while the Prosecution Service denied that that was so. After a number of further denials of each side’s claims by the other side, as well as disciplinary actions against State Prosecutors, the Translation Service of the Ministry of Foreign Affairs delivered the translation of the bill of indictment in the German language on the 15th of September.

But what can we learn from this case about the consequences of not translating legal content?

What happened confirms that legal translation is still considered as an unnecessary and trivial service in Greece, even by some legal professionals themselves. It is worth noting that in the preparatory stage of the proceedings a State Prosecutor didn’t grant the request for the translation of the bill of indictment made by the non-Greek nationals, on the grounds that the defendants had already provided a statement of defence and had been apprised of the charge sheet, therefore the translation of the bill of indictment was not necessary. The content of legal documents though is what determines the outcome of a court case. In criminal matters, by issuing a bill of indictment the Judicial Council is in effect deciding to bring the defendant to trial, if it finds that there is sufficient evidence to support the charges against him. The content of that document will shape the defendant’s defence and will determine a number of other rights that he has under Greek law, such as =his right to appeal the decision of the Judicial Council. Let’s hope that the Siemens story doesn’t need to be repeated, before we can realise how important the translation of legal documents is, both in and out of the courtroom, and what consequences not translating legal content can have.

The services of legal translators should be engaged from the outset in legal cases where it is anticipated that there will be a need for legal content to be translated, in order for delays of this kind to be avoided. Legal translators are not only valuable, but also necessary aides in cases where there are foreign elements. So choose your translators from the outset and keep them updated about any developments or changes in your case. How much faster would the Siemens case have progressed from one stage to the next, if the services of legal translators had been engaged from the beginning and if the translation of every essential legal document had been secured right after it was drafted?

Assign the translation of your legal documents to specialised translators, who know the legal system of the country in which the documents are being drafted, as well as the legal system of the country into whose language they are translating. Let’s not forget that the essential aim of the translation in the Siemens case was to provide the foreign defendants with the opportunity to exercise their right to defend themselves. No matter how good the German language skills of the translators are, if they are not familiar with the legal system of Greece, they won’t be able to grasp the meaning of the terms found in legal documents. No matter how well they know the Greek legal system, if they are not familiar with German legal terminology as well, they won’t be able to choose the most suitable term, in order to fulfil the aim of the translation for its final recipient.

Besides the Siemens case, there are also other cases where not translating legal content had adverse consequences and often incurred extra costs. A recent excellent example we have already highlighted was the WhatsApp

Eva is an English / German to Greek legal translator. She holds a Master’s in Law and a Postgraduate Degree in Specialised Translation. She worked as a legal practitioner in Greece for 7 years and has been bringing her expertise and knowledge to the translation industry for the last 3 years. She is an SDL-certified translator and is obsessed with languages. Besides working with language, she also really enjoys travelling. She has lived in Greece, Germany and Belgium and is now based in Ireland.

In one of our previous posts we talked about the cultural inconsistencies in legal translation that often come up and specifically about inconsistencies in the realia. In this post, we are going to talk about the ways in which the legal translator can tackle these inconsistencies.

We gave an example using the term “fiduciary” and its Greek translation, but we concluded that there isn’t an equivalent term that has the exact same meaning and an identical content in the Greek legal system. What needs to be stressed here is the fact that the legal translator is able to reach this conclusion only if he is familiar with the law of both the legal systems involved: the legal system from which the source text comes and the legal system from which the target text comes. Familiarity with the first will enable the translator to have a clear grasp of the meaning, the content and the function of the concept, the term or the realia that he needs to translate. Familiarity with the second will enable him to look for the respective concept, term or realia in the target language.

As in the example that we used in our previous post, in the case where there isn’t an equivalent concept, term or realia, the translator should embrace the interpretative approach, aiming at the same time to ensure that the final recipient of the text will be able to understand it. The target text will be used in the context of a different legal system by people familiar only with their own legal system. The translator’s aim should be to clearly present the foreign legal system, without altering the structure and the legal effect of the text and of course without adding to or subtracting from the amount of information that the final recipient will draw from his translated text.

Hard? Yes. Impossible? No.

In any case, the legal translator should contact his client and advise him about the implications that arise from the inconsistencies of the two cultures involved, as well as about the ways in which he is planning to tackle those cultural inconsistencies in legal translation.

In our example I chose to translate the term “fiduciary” as “διαχειριστής αλλότριας περιουσίας” (administrator of another’s affairs), drawing my inspiration from the concept of “management of another’s affairs/voluntary agency” (διοίκηση αλλοτρίων) in Article 730 of the Hellenic Civil Code. The reason that the English term couldn’t have been translated as “διοικητής αλλοτρίων” (manager of another’s affairs/voluntary agent) is because there is a crucial difference between those two concepts: the agent mentioned in Article 730 of the Greek Civil Code manages the affairs of another person, but acts without authority, while the fiduciary acts under a mandate.

Just like any translator, the legal translator should also cultivate his multiculturalism, as this is a necessary professional tool. Since any form of cross-language communication is also cross-cultural communication (Vlachopoulos, p. 36) and every legal system is created within a specific culture, it is more than necessary for the legal translator to be aware of and be exposed to his own, as well as the foreign culture. This is the very heart of the role of the professional legal translator, as he is the person responsible for transferring the message and the content of the legal text from one culture to the other and finding solutions to the legal inconsistencies in his legal translation.

According to Vlachopoulos, who in turn refers to the research of Maddux & Galinsky in the field of business administration (Vlachopoulos, p. 37), simply knowing the language, as a sum of finite linguistic units and syntactical mechanisms, without being aware of the cultural elements reflected in the usage of a specific word or in the usage of a specific syntactical mechanism and without being conscious of the significance these elements bear in the foreign culture, dooms every effort of cross-cultural communication to failure. In other words, lack of awareness of the cultural parameters defeats creative understanding and leads to a linear and uncritical transfer of structures of the source language to the target language. It leads, above all, to an uncritical transfer of the thought structures of the source culture to the target culture. Vlachopoulos then he goes on to say that it is necessary for the translator to be familiar with the cultures with which he is working, so that, firstly, he can possess the knowledge and the experience that will support his understanding of the target culture and secondly, to be able to assess the acceptance criteria and in this way be able to converge to the highest possible extent with the communication standards that he is required to respect.

In the context of cross-cultural communication, therefore, the skilled legal translator should possess an awareness of the legal culture of both countries and keep himself constantly informed about new legislation, new case-law and the changes taking place in his own, as well as in the foreign legal system.

A legal text always reflects a specific national legal system, in the sense that it is based on the laws, rules and regulations of that legal system. Any national legal system is, in turn, culture-based, since it is created in accordance with the needs of a specific culture and aims to ensure harmonious co-existence between the members of that culture. In this sense, law is an integral component of culture. Since no two cultures are identical, no national legal system can be identical to another, even if both of them belong to the same legal family. The logical consequence of this simple fact, and one that is of course anticipated by professional legal translators, is that difficulties and challenges are bound to come up while transferring a legal text’s message from one national legal system to another, due to the differences and non-equivalences between the respective legal systems. These differences and inconsistencies are, of course, also reflected in the legal language, which is the means of expressing the national law.

The differences therefore between the source culture and the target culture create inconsistencies in legal texts. There are different kinds of inconsistencies, but in this post we are going to talk about what is perhaps the most common kind of inconsistency that can be found in legal texts, one that arises due to the non-existence of a culture’s realia (institutions, concepts and systems) in another culture. This type of inconsistency is called factual inconsistency. I wonder if there is a professional legal translator who hasn’t encountered terms, phrases or concepts in legal texts that refer to realia that exist in the source culture, while no equivalent realia exist in the target culture. An example of a factual inconsistency that I recently encountered while translating an English legal text into Greek is the term “fiduciary”. This general term, that can be found in Common Law systems, refers to the person that somebody entrusted with the management of their affairs. The individual who acts as fiduciary is someone who undertakes to act for the benefit of and on behalf of the person who trusted them in relation to a particular affair. In bilingual English to Greek legal dictionaries the term fiduciary is usually translated as θεματοφύλακας (thematofylakas). The term θεματοφύλακας (thematofylakas) however refers to the contract of deposit under Article 822 of the Greek Civil Code, according to which “the depositary takes delivery from another person of a moveable thing with a view to keeping it subject to the undertaking of restitution upon demand”. It doesn’t take long for a professional legal translator, who is familiar with the Greek law of obligations, to realise not only that the term fiduciary cannot be translated as θεματοφύλακας (thematofylakas) in Greek, since a fiduciary relationship does not include only guarding a moveable thing, but also that there isn’t really an equivalent term or concept in the Greek legal system with exactly the same meaning and an identical content.

The next question that logically comes up is how should a legal translator tackle these inconsistencies?

We will try and give an answer to this question in a future post. In the meantime, you can read more about inconsistencies in legal texts and the legal translator’s approach in this article by Stefanos Vlachopoulos in Greek or in this one by Radegundis Stolze in English.

Translating the workings of a civil law system into English (common law) terminology can be extremely difficult, as all those who have ever attempted it will know. The reason for the complexity is simple; translating from one system to another system is far from straightforward. When, for example a Dutch lawyer has to explain his legal system to a common law lawyer, it is not simply a matter of replacing Dutch words with English words. The Dutch system is not a carbon copy of the English system, which means that there will not always be equivalent English terminology at hand for translation purposes. In order to use English legal terminology correctly and effectively, the practitioner must not only be familiar with his own legal system, but also have a basic grasp of the structure of the common law system.

It would seem therefore that legal translation is, at best, an approximation. Indeed, many lawyers acknowledge that this is so and that equal meaning and exact translations between legal texts are illusions that cannot be achieved in practice. Thus, many claim that the task of the legal translator is ‘to make the foreign legal text accessible for recipients with a different (legal) background’. However, that claim only works with regard to texts that do not have force of law in the target language.

Legal translation is concerned with comparative law and the incongruency of legal systems: elements of one legal system cannot simply be transposed into another legal system. In legal translation the comparison of legal terms precedes their translation. Legal translators must compare the meaning of terms in the source and target legal systems, which will make them aware of similarities and differences in their use across languages.